Citation Nr: 22018079 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-30 753 DATE: March 28, 2022 ORDER Entitlement to a temporary total rating pursuant to 38C.F.R. §4.29 due to hospital treatment in excess of 21 days for a service-connected disability is denied. FINDING OF FACT The Veteran was hospitalized from November 6, 2015 to December 31, 2015, he did not receive hospital treatment in excess of 21 days for his service-connected disability during the appeal period. CONCLUSION OF LAW The criteria for a temporary total rating under38C.F.R. §4.29 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.29. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held via videoconference in November 2019. In February 2021 the Board sent the Veteran a letter informing him that the Veterans Law Judge who held his November 2019 Board hearing is no longer employed at the Board. The Veteran was offered an opportunity for another Board hearing and was informed that if he did not respond within 30 days it would be assumed that he did not want another hearing. The Veteran has not responded and thus the Board will proceed to address the issue on appeal. Entitlement to a temporary total rating pursuant to 38C.F.R. §4.29 due to hospital treatment in excess of 21 days for a service-connected disability. Under 38 C.F.R. § 4.29, a temporary total, or 100 percent rating is assigned when it is shown that a service-connected disability has required hospital treatment in a VA or VA-approved hospital for a period in excess of 21 days. The Veteran is service connected for anxiety disorder. The evidence of record makes clear that the Veteran was hospitalized from November 6, 2015 to December 31, 2015, a period in excess of 21 days. See July 2016 VA medical record. However, it appears that the reason for the Veteran's continued hospitalization varied over time. Medical treatment records reflect that from November 6 to November 16, the Veteran was hospitalized for "PTSD [posttraumatic stress disorder] and depression" as well as for "[homicidal ideation] and severe nightmares[.]" See July 2016 VA medical record. From November 16 to December 8, the Veteran participated in an inpatient Psychosocial Residential Rehabilitation Treatment Program (PRRTP). See December 2015 VA medical record. The Veteran's medical treatment records reflect that while his participation in the PRRTP reflected his psychiatric disorder and substance abuse, among other issues, his admission diagnosis was polysubstance abuse. See, e.g., November 2015 and January 2018 VA medical records. VA medical records show that on November 16, 2015, upon admission to the PRRTP the Veteran's active problems were for cocaine induced mood disorder, cannabis dependence, cocaine dependence, other and unspecified alcohol dependence, glaucoma, schizophrenia, PTSD, and chronic prostatitis. However, as stated above, the admission diagnosis was polysubstance abuse, and it was noted that the Veteran was admitted from the psychiatric care unit. His psychiatric diagnoses were antisocial personality disorder, cocaine and cannabis use, mood disorder most likely substance induced. Thus, the weight of the evidence shows that the Veteran's substance abuse disorders were primarily the disorders based upon which he was treated for in the PRRTP. Further, from December 8 to December 31, the Veteran participated in an inpatient Substance Abuse Treatment Program (SATP). See July 2016 VA medical record. Thus, the evidence shows that the Veteran was hospitalized for a psychiatric disorder was from November 6, 2015, to November 16, 2015, which is a period of less than 10 days. The weight of the evidence shows that from November 16, 2015 to December 8, 2015, and from December 8, 2015 to December 31, 2015, the Veteran was hospitalized for his substance abuse disorder. Governing law and regulations provide that direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the Veteran's willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301. However, case law provides that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to a service-connected disability. 38 C.F.R. § 3.310; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another disability. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). VA examination reports of March 2013, February 2014, June 2017, September 2017, and October 2018 diagnose the Veteran with additional substance abuse disorders. However, none of these examiners opined as to whether it is at least as likely as not that such substance abuse disorders are "indeed caused by [the Veteran's psychiatric disorder]... [and] not due to willful wrongdoing" as contemplated by Allen. In a January 2020 VA opinion, the examiner opined that it is less likely than not that the Veteran's substance abuse disorders were due to or aggravated by his service-connected anxiety disorder. The examiner explained that the Veteran was diagnosed with several substance use disorders prior to a diagnosis for a psychiatric disorder. The records show that the Veteran was diagnosed with alcohol dependence and marijuana abuse as early as 1987 when he was admitted to the Chillicothe VAMC. His records show that he was diagnosed with a psychiatric disorder in 1990, which was diagnosed as schizophrenia. The examiner pointed out that another VA examiner in October 2018 noted similar findings in that she found alcohol and cannabis dependence appeared in the Veteran's records prior to any psychiatric disorder. The examiner also pointed out that on VA examination in October 2018 the Veteran had a diagnosis of generalized anxiety disorder, alcohol dependence, and cannabis dependence; in a September 2017 consult he was diagnosed with alcohol, cocaine and marijuana use disorder all in self-reported early partial remission; and, a VAMC hospital discharge summary shows the Veteran was hospitalized from April 2, 1987 to May 4, 1987, for alcohol dependence and continuous marijuana abuse. In an accompanying VA examination in January 2020 the Veteran's diagnoses were unspecified anxiety disorder and cannabis use disorder in early remission. The examiner concluded that the Veteran's substance abuse began prior to his psychiatric disorder. The symptoms overlap, however given that the Veteran reported he has not used marijuana in more than six months, his cannabis use disorder is in early remission and he is likely not having withdrawal symptoms at this point. The Board finds the January 2020 VA opinion to be probative as it was based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the matter of whether the Veteran's substance abuse disorder was caused or aggravated by his service-connected psychiatric disorder, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The disorder is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorder. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. Thus, for the above reasons the evidence is persuasively against the claim, the benefit-of-the-doubt doctrine is not for application, and the Veteran is not entitled to a temporary total rating under 38 C.F.R. § 4.29. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mac, Motrya The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.